Sleeping on the Job? Clarity regarding the national minimum wage and information about sleep deprivation

Updated 2015. PLEASE NOTE THAT FROM SEPTEMBER 2016 THIS POST WILL NO LONGER BE UPDATED, OR COMMENTS ANSWERED – YOU CAN NOW READ OUR UPDATED ADVICE ON THIS TOPIC HERE.

In 2012 an important case at the Employment Appeals Tribunal confirmed what previous case law had described – that during a sleeping night-shift, only the hours spent awake and working will count towards a workers National Minimum Wage.

City of Edinburgh council v Lauder and others

This case reinforced the key distinction between a job where a worker’s core duties require them to work during the night and a job where a worker is required to be ‘on call’ (in addition to their core working hours).

In the first situation – where a worker’s core duties require them to work at night, the whole period will count as actual working time for the purposes of the National Minimum Wage – even if their tasks only arise occasionally and they do sleep in the time between those tasks, for example a night watchman or a nurse dealing with telephone queries.

In the last situation – where a worker is ‘on call’ (and their main job is not carried out at the same time as the ‘on call’ period) and they are provided with suitable sleeping facilities, only the hours when the worker is awake for the purpose of working will be counted as working time for the purposes of the NMW.

In this case the workers were sheltered housing wardens working 36 hours per week from 8.30am – 5.30pm and who were expected to be ‘on call’ outside of their normal working hours. They were provided with accommodation that was free of rent and council tax and agreed to be resident at their accommodation for 4 nights a week in case of emergencies. The elderly people in the accommodation had an alarm system in their houses which connected with the workers’ accommodation and a central alarm system in a Council building. The workers would hand the alarm connection over to the Council at about 5pm but had to take the alarm connection back by midnight on 4 nights a week (which took them about 10-15 minutes).

The claimants were ‘salaried hours’ workers, which means they were paid an annual salary for a fixed number of hours in regular installments.

The claimants said they were not being paid the NMW for the time spent in taking back the alarm connection and the time between midnight and 8.30am on the 4 nights of the week when the alarm was connected to their house – which they believed was all ‘salaried hours’ work. There were 10 claimants, and they could claim Time Off in Lieu or overtime payments if called out during the night – 6 had never claimed any payments or TOIL and the others had only done so occasionally.

The original Employment Tribunal agreed with the claimants and decided the claimants were ‘at work’ rather than ‘on call’.

The Council appealed against this decision and the Employment Appeal Tribunal (EAT) agreed with the Council and reversed the Tribunal’s original decision.

The EAT said it was not necessary to determine whether the 10-15 minutes involved in taking back the alarm connection constituted salaried hours because there was no NMW shortfall for those short periods.

The EAT also said that the original Tribunal had failed to recognise the distinction between ‘working’ and ‘on call’ in relation to workers who sleep at or near their place of work and these workers were ‘on call’ and not entitled to the NMW for periods when they did no work.

In February 2015 the Government published draft National Minimum wage Regulations – these Regulations repeal and re-enact all the law relating to the National Minimum Wage in the UK. There are not any substantive changes to the Regulations but that Government have said they intend to issue guidance to give clarify on issues such as the rules on sleeping time, travel time and the definition of rest breaks. We’ll update this article as things become clearer!

Information about Sleep Deprivation

What steps do employers need to take to ensure their employees are getting sufficient rest at night?

Sleep deprivation and poor sleep quality and the resulting tiredness can have serious consequences at work and affect productivity and efficiency and can lead to some serious problems and accidents.

Research by Vielife in 2012 found that those sleeping poorly were more unhappy with their jobs, had higher rates of depression, lack energy, are less productive and efficient with memory and concentration lapses, can be irritable and have a much higher sickness/absence rate than those who sleep well. Sleep deprivation is also believed to cause people to make decisions based on an emotional reaction rather than on a rational assessment of the situation, which can cause accidents.

There is no doubt that shift workers can experience these problems if they have difficulty adjusting to different sleeping and waking schedules, especially if they work nights.

The Health and Safety Executive believes that fatigue due to sleeplessness costs UK employers between £115million and £240 million per year in workplace accidents.

The HSE points out that the ‘legal duty is on employers to manage risks from fatigue, irrespective of any individual’s willingness to work extra hours’ and also says that ‘compliance with the Working Time Regulations alone is insufficient to manage the risks of fatigue’. They advise employers to understand the levels of sleep deprivation experienced by their workers which can include:

Ensuring employees understand the relationship between sleeplessness and workplace accidents/lack of productivity/personal health

Avoid allowing employees to over-work

Asking sleep-deprived workers to keep a diary of the sleeping patterns

Decreasing the number of nights in a row that employees are working on evening or early morning shift work

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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